QUESTION:
One of the homeowners put huge potted plants on his balcony. If water
eventually weakens the
balcony, who is
responsible for repairing it?
ANSWER: The structural elements of the balcony are almost
always the responsibility of the association to maintain. The only
exception
I've seen is when the balcony is added to the building by the unit owner
(with
the association's permission). When that happens, we require the owner
to sign a
recordable covenant that makes him/her responsible for the repair and
maintenance of
the balcony structure.
Balcony
Surface. When it comes to the
balcony surface, your governing documents control (assuming they address
the
issue). If the association is responsible for waterproofing the surface,
then
the board should make sure it keeps everything waterproofed. More often
than not,
governing documents are
unclear or silent on the issue of deck maintenance. In that case, the
Davis-Stirling Act resolves
the ambiguity by stating that "Unless otherwise provided in the
[CC&Rs] . . .
the owner of each separate interest is responsible for maintaining . . .
any
exclusive use common area
appurtenant to the separate interest. (
Civ.
Code §4775.)
That means owners are responsible for maintaining their balcony's
waterproofing
surface (which is the norm for most associations).
Negligent
Maintenance. If an owner
tiles the balcony deck or fails to properly maintain the
waterproofing and
this leads to damage of the balcony's structure, the association could
hold the
owner responsible for the damage. Normally, there are provisions in the
CC&Rs
that allow associations to charge an owner for the cost of repairing
damage
caused by their negligence. If the CC&Rs are silent, the
Davis-Stirling Act
allows boards to impose reimbursement special assessments in the form of
a
monetary charge and to collect it through lien and foreclosure (provided
the
authority to impose a lien is in the governing documents). (
Civ. Code §5725.)
Recommendation. Boards should adopt reasonable rules
restricting planters and other activities that can damage balconies.
ASSISTANCE: Associations needing legal assistance can
contact us.
To stay current with issues affecting community associations, subscribe to the
Davis-Stirling Newsletter.